The Domestic Abuse Act 2021 three years on

In 2021, the new Domestic Abuse Act became law. It has made a significant difference, introducing much wider definitions for domestic abuse. The definition is as follows: the behaviour of a person (A) toward another person (B) is domestic abuse if (1) A and B are each 16 or over and personally connected to each other and (2) the behaviour is abusive.

Behaviour is ‘abusive’ if it consists of any of the following: physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse (any behaviour that has a substantial adverse effect on B’s ability to acquire, use or maintain money or other property, or obtain goods or services; or physiological, emotional or other abuse. In particular, it does not matter whether the behaviour consists of a single incident or a course of conduct.

The Domestic Abuse Act has helped victims of domestic abuse who previously thought that there had to be actual violence towards them or at least threats of violence. The perpetrators may still say ‘well, I haven’t ever hit you have I’, as if that makes everything alright, but it doesn’t.

Proving abuse

It can be worrying for victims when they know that they will have to prove abuse. They will often say no-one else was there to see it, so how can I prove it. Even where friends have been aware of the emotional abuse, they are often reluctant to provide evidence as a witness. It may be, for example, that at a neighbourhood barbeque several people heard the perpetrator verbally abuse the victim using strongly worded criticism, undermining and openly putting them down in front of others. However, this group of neighbours will know one another and there will be mixed friendships within the group between males and females and whilst one member of another couple may be willing to be a witness, their partner may not want them to.

Proof can be in many forms. It can include a report to the police (with a crime number), a visit to the GP, evidence from a visit or telephone contact with a domestic abuse support service, a letter from children’s services. It is, therefore, important for the victim to seek help. Just taking that initial step to contact a domestic abuse support service can help the victim realise that they are being abused. They may previously have minimised it and often the abuser will have intentionally minimised it, mitigated it or even used the victim’s distress as a subject of further criticism. Victims have been told how ‘pathetic’ they are to even be reacting to domestic abuse. This serves to undermine the victim. If they can take that first step to seek help, it is the best way forward in order for them to gain a different perspective on what is happening to them. If victims are concerned about costs, a domestic abuse charity can be the starting point or their local Citizens Advice Bureau.

A personal statement

Even if there is no evidence as set out above, it should not be the reason to not make an application to the court. There is an opportunity to make an application to the court to set out in writing what is happening and as part of that process to complete a very detailed statement. The detail is in itself very convincing and difficult for the perpetrator to deny. It can include many day-to-day examples, which in themselves may sound small to the victim, but when considered together can show a clear pattern of abuse.

With emotional abuse, it has often been going on for a long time and there are likely to be many incidents and the victim will be able to describe these. They may have to overcome an initial reluctance in order to overcome the feeling that these incidents are trivial, because this is most likely what they have been told often in very strong and insistent terms by the perpetrator.

Legal Aid

Legal Aid is available to victims of domestic abuse. The changes to the eligibility requirements for Legal Aid in family law for private disputes came into effect on 8 January 2018. There is no longer a time limit on abuse evidence, which previously stood at five years.  Evidence will need to be provided for Legal Aid, but it has been extended to include evidence from domestic abuse support organisations and now housing support officers. The victim needs to provide one piece of written evidence of domestic violence to get Legal Aid in a divorce or separation proceeding. Evidence of finances will also be needed.

It can sometimes be difficult for victims to find a solicitor with capacity to offer legally aided advice and representation. Many firms do not offer Legal Aid at all. One of the factors influencing many solicitors to cease to offer Legal Aid is not the lack of desire to help those who need it, but the increased burden posed by the administrative requirements of the Legal Aid Agency. The average bank manager, in considering a firm of solicitors’ debts would generally expect a debt, say, of three years’ old to be written off as irrecoverable. However, for those who have conducted Legal Aid work, they know the sort of queries that can arise and it can sometimes take many years to resolve these, but the Legal Aid Agency will ultimately be paying. Bank managers do not recognise that. For example, if counsel has been used, but has not submitted their claim correctly (or at all) and has then left their chambers, the clerks at that chambers may not be particularly enthusiastic about addressing this and, so, the only option may be to track down that barrister in order to get the paperwork completed. It may be that the barrister’s fees were a small part of the total cost being claimed by the solicitors and a low priority for the barrister. However, the Legal Aid Agency will not pay the solicitor until they have resolved the issue with the barrister. These kinds of queries are very time consuming and have come to act as a deterrent to Legal Aid work for many well-motivated solicitors.

Charities 

Fortunately, the area of domestic abuse is an area where there is now significant help from the charity sector, which is of great value to victims. Women’s Aid is a good starting point and they have a domestic violence helpline. There is also a national domestic abuse helpline and many others.

Charities play a very important role in assisting victims to prove abuse, particularly emotional abuse in private family law proceedings, and to instigate civil court proceedings or report the abuse to the police.

Once the victim takes that all important first step to seek support, they will be assisted with their applications, the court procedure and the preparation of a statement. It usually means that the victim has to attend court in person, but what they want to say will be set out in their statement. Judges are more and more familiar with litigants in person and, particularly, when there is domestic abuse. A request can be made for special measures at court, which can provide screening, so the victim does not see and cannot be seen by the perpetrator. The judge can see all the parties. Arrangements can also be made for the victim to come in at a different time or via a different entrance. A nervous applicant can arrange to visit the court in advance of the hearing, so the surroundings are familiar.

The proceedings

Taking the step to issue a civil application can be important, even when there are existing police proceedings. I have seen many situations where the police have been called, they have arrested the perpetrator, and charged them, and set bail. The victim feels, and is, protected by the bail conditions. The police can indicate to the victim that the situation will continue for some time. The victim can then suddenly find the police have decided not to proceed and the bail conditions have, therefore, been lifted. It is then very important that the victim has obtained a non-molestation order and possibly an occupation order in the interim. The courts are aware that the existence of bail conditions does not mean that the victim does not need an injunction because the courts are familiar with charges being dropped and bail conditions ceasing.

At the first hearing, the judge can direct that there is a fact-finding hearing if the allegations are denied. If, for example, one parent is seeking time with a child and the other parent is opposing that because of domestic abuse to both that parent and either to or in the presence of the child, the court may direct a fact-finding hearing first in order to consider the allegations and the evidence in support of the claims. The allegations will be put to the court to decide whether the incidents did or did not happen. It will mean both parties giving evidence in writing and, often, orally.

The judge needs to make a decision at the fact-finding hearing and the proof is based on ‘the balance of probability’. This is different to the standard of proof in criminal proceedings, which requires allegations to be proved ‘beyond reasonable doubt’. The judge will consider whether it is more likely than not that the incident/s took place and the judge can make a finding of fact that it/they did. The judge has to make a decision one way or the other. 

It isn’t always necessary to have a fact-finding hearing to prove allegations and the court have to consider whether it is essential to deciding the family law matter which is before the court and which would usually be an application in relation to children. The judge needs to consider how relevant the allegations are to the issues the judge has to decide. Does the abuse put the child at risk? When the victim is considering what evidence they may have, there may also be text messages or emails that can be provided. Even more innocuous texts can be evidence, if they have been sent one after the other in rapid succession, demanding a response.

Conclusion

For some victims, taking that first step to contact a domestic abuse support charity can be very important. As well as all the practical help and advice on proof, the victim finding that they can actually attend court by themselves can be a very big boost to their confidence if domestic abuse is part of divorce, separation, arrangements for children, or the resolution of finances proceedings. If possible, both the victim and the perpetrator will benefit from their own detailed initial advice sessions with their own solicitor. This is likely to be about two hours, depending on how complex their case is, and it is an expense. However, the solicitor will be able to consider all the detailed evidence from that person and the advice will be bespoke rather than generalised. That advice can then enable the person to progress to the next steps, including preventing further domestic abuse.

It may be important to obtain a non-molestation order or an occupation order very early on to provide safety for the victim and often the children too, in order to be able to address the other matters in relation to the care of the children and resolving the finances. For the solicitors among us, valuable guidance is provided by the Court of Appeal in four cases considered together (neutral citation number [2021] EWCA Civ 448) ZC19P01540 (re H-N); ZE18P00971 (re T); ZC18P01277 (re H); CT18P00257/00238 and ME20P50123 (re B-B).